CASE 88 — PETITION FOR MANDAMUS BY J. F. SHORT FOR TRUSTEE OF SCHOOL DISTRICT AGAINST L. A. L. LANGSTON, &C. TO COMPEL THEM TO ACCEPT A SCHOOL CENSUS.

May 23.

#### Short, &c. v. Langston, &c.

Appeal from Galloway Circuit Court.

Thos. P. Cook, Circuit Judge.

Demurrer to petition sustained and plaintiffs appeal

Reversed.

Schools and School Districts — District Board — Powers—School Census — Ky. Stats., 1903, section 4449, provides that the trustees of each school district shall annually take a census of children who will he between the ages of six and twenty years on the 1st of July following,' and shall send a list to the county superintendent, and one to the clerk of the county court. Section 4434 provides that any two of the trustees constitute a quorum to transact business iat a meeting of which all shall have had reasonable notice. Section 4437 makes the trustees a body corporate. Held, that a census certified to by only the chairman of the board of trustees was not the >act of the district, and the county superintendent had no power to make it a part of his records.

ZEB A. STEWART for Appellants.

Our contention is that the chairman of a school district, as well a county superintendent are both ministerial officers, and that when the census returns of a district and properly" made out and returned by a quorum of the trustees, the county superintendent has no right to refuse to accept same, or to refuse to certify same to the state superintendent. (Civil Code, secs. 474, 476; City of Cynthiana v. Board of Education, 21 Ky. Law Rep., 752; Ky. Stats., secs. 4434, 4449; Am., & Bng. Ency. of Law vol. *81719, p. 465 (1 ed.); High on Legal Remedies, p. 12, 16 and 17; Leslie County v. Wooten, 75 S. W., 208; Cochran v. Beckham, 89 S. W., 262; SToung v. Beckham, 72 S. W., 1092.)

BENNETT, ROBBINS *&*THOMAS for appellees.

(No brief in the record.)

Opinion op the Court by

Judge Hobson

Reversing.

This suit was filed by the trustees of Dexter common school district No. 78 in Galloway county, on relation of J. F. Short and P. A. Smith, against two of the trustees of the district, against J. F. Padgett, the other trustee who was the chairman of the board, and L. A. L. Langston, the county school superintendent, to obtain a mandamus. The circuit court sustained a general demurrer to the petition, and the plaintiff’s appeal.

It is alleged in the petition that Short, Smith and Padgett are the duly elected and qualified trustees of the district; that the trustees of the district in the year of 1906 made a census of the school children, and reported it to the county superintendent, as required by the statute; that under this census there were 69 school children in the district; that Langston refused to receive the census which they made, and Padgett had alone made a census which had not been adopted by the trustees, and was fraudulent and incorrect, by which he made it appear that there were 77 children in the district; that the census made by Padgett was not approved by the trustees or certified by them, but only by Padgett; that the county superintendent had accepted the census made by Padgett and had refused to place upon the record the census *818made by the trustees and certified by them. The plaintiffs also set out in detail the different persons placed by Padgett in his census who were not pupils *of*the district within the ages required by the statute. They prayed a mandamus requiring the county school superintendent to accept the census which the trustees of the district had made and certified, and to certify it to the superintendent of public instruction as the census of the district. While the case was pending, M. C. Davis, on her petition, was allowed to file her petition in the action in which- she joined with the plaintiffs, charging’ that she was -a teacher by occupation; that she held second-class certificate, and was so authorized to teach in any common school district not reporting more than 75 pupil children; that at a regular meeting of the trustees of the district, she had been employed to teach the school for the year 1906; that she had begun the school and was teaching it; and that the census made by Padgett was fraudulently made by him to prevent her from teaching the school and obtaining the money for it. A number of other allegations are made which are not material to be set out here.

Section 4449, Ky. Stats., 1903, is as follows: “It shall be the duty of the trustees of each district, annually, during the month of April, to take an exact census of all the children that reside in such district on the first day of April who will be, on the first day of July following, between the ages of six and twenty years, and on or before the first day of May report a list of the same to the county superintendent, and a duplicate list to the clerk of the county court, to be filed in his office, specifying the name, age, sex and names of the parents or guardians of each child, to be entered in a book furnished him by the state, *819and kept as part of the records of his office.” By section 4434, Ky. Stats., 1903, any two, of the trustees may constitute a quorum to transact business at a meeting of which all shall have had reasonable notice, and by section 4437 the trustees are made a body corporate. The census required to be taken by section 4449, above quoted, is the act of the trustees. The county superintendent has no right .to receive or certify any census which is not certified by the trustees of the district. A census certified by one of the trustees, although he is the chairman, but which has not in fact been approved by the trustees, is not the act of the district, but only one of the trustees. When all of the trustees have had reasonable notice of a meeting, then any two of the trustees meeting pursuant to the notice constitute a quorum to transact business, and a census thus approved is the act of the district. If it shall turn out that neither of the reports made to the county superintendent is the act of the district, then the writ should go, for no census report which is not the act of the district should be made a part of his records or certified by him to the school superintendent. It is alleged in the petition that the county superintendent was notified that the trustees had not approved the census returned by Padgett, and that he was requested to file the census which the trustees had in fact made and certified, and that this he refused to do.

The trustees in their corporate capacity represent the school district. The action is brought, therefore, by the district to protect valuable rights. The district has the right to have'its records properly kept, that confusion may be avoided in its accounts with the state, that it may be served by the teacher of its own choosing, and that it may not be involved in litigation. *820Section 4434, Ky. Stats., 1903, among other things, provides: “The trustee having the shortest time to serve shall he chairman of the hoard of trustees, whose duty it shall he to preside at all its meetings and to make the reports, and to perform all other ' such acts and duties as required hy law of trustees; and in case of neglect or non-performance of duty, the one so remiss of duty shall he subject to like fores and penalties as imposed hy law on trustees for neglect of duty or other violations of law. ’ ’ By this provision the trustee having the shortest time to serve is chairman. It is his duty to preside at all meetings of the hoard, to make the reports, and to perform all other such duties as are required hy law of a school trustee; hut this does not make him the hoard or make Ms act the act of the hoard. He- has no more authority as to matters required of the trustees than any other trustee. He is to report the action of the hoard, and is “to perform all other such acts and duties as required hy law” of any other trustee.

The case is here on demurrer to the petition. The demurrer admits the truth of the allegations of the petition. If the facts stated in the petition are true, the census made hy Padgett and returned hy him was void, and the plaintiffs are entitled to the mandamus prayed.

Judgment reversed, and cause remanded, with directions to overrule the demurrer to the petition, and for further proceedings consistent herewith. -